Whangarei District Council High Court Hearing on Interim injunction

On Tuesday the High Court in Wellington heard Whangarei District Council’s (WDC) application seeking an interim injunction to allow the council to delay starting fluoridation until their substantive case is heard later in the year. Under an Amendment to the Health Act that came into force in 2021, the Director-General of Health (DGoH) ordered WDC in July 2022 to start fluoridation by 28th March 2025.

WDC lawyer, Jeremy Browne, told the court that WDC were between a rock and a hard place. He said the council has been ordered to start fluoridation under one law, but to do so would cause the council to act unlawfully under another law. The Water Services Drinking Act (2021) requires councils to provide “safe” drinking water. “Safe” in relation to drinking water, means drinking water that is unlikely to cause a serious risk of death, injury, or illness.

Providing safe drinking water was a legislative requirement that was set in stone i.e. could not be challenged, however, the Director-General has been given legislative authority to order fluoridation to start, stop, or not be started.

Browne argued that the advice given to the DGoH did not provide her with the correct information which led to an incorrect decision being made. The Judge seemed to take the view that unless WDC would be prosecuted for this breach, the mere fact that it was directed to do something unlawful was not grounds for issuing an interim injunction!

Jeremy Browne provided written evidence from the US National Toxicology Program’s (NTP) eight year review, published in August 2024, that found fluoride is a neurotoxicant and they were confident that this harm to developing brains occurs when water contains 1.5ppm. The NTP but did not rule out it could be happening at lower levels, with most high quality studies being at 0.7ppm or below. Browne noted that New Zealand’s fluoridation levels (allowing up to 1ppm) were nearly 50% higher than the studies from Canada where harm was found at 0.59ppm.

Browne provided affidavits from two of the most eminent scientists in the field of toxicology; Bruce Lanphear and Philippe Grandjean. These scientists have been responsible for providing the evidence that the US Environmental Protection Agency relies on for lead and mercury, respectively. He argued that the advice provided to the Director General of Health, particularly by Dr Ian Town, a lung specialist, was slanted and misleading and that Dr Town’s area of expertise did not compare to Lanphear and Grandjean’s who are both world-renowned experts in exactly the subject being discussed.

Browne said “What we are witnessing from the Ministry of Health, is institutional inertia – it is very difficult for a government institution to change its mind on anything”.

Jason Varuhas, lawyer for the Crown, criticised WDC for asking the court for the injunction despite this being the only legal action available to the council. He also criticised WDC for not taking action when they were first directed. Browne pointed out that the most compelling research was only published in the second half of last year.

Varuhas told the court that the Ministry of Health had reviewed all evidence and had found that fluoridation was safe and effective. He claimed that Lanphear and Grandjean had only looked at a narrow range of studies and had only looked at studies that supported their view. He also claimed that fluoridation would primarily help poor Maori children in Whangarei. Varuhas tried to compare decay rates in Whangarei with Wellington to support his point. Yet it is well known, as was pointed out by Browne, that high income city dwellers had better teeth than low income rural dwellers, making the comparison a deliberate deception. Browne also said the three top reviews of the last 25 years found there was no evidence that fluoridation improved social equity in oral health and that the latest Cochrane Review of 2024 found, at best, fluoridation reduced dental decay rates by only 3%.

In Browne’s closing argument he said Varuhas’s claims were patently incorrect. The NTP review had looked at all 100 studies on fluoride-IQ and was the most comprehensive review of the science, by the US Government’s top scientific body. He advised that the US court case, to which Lanphear and Grandjean gave expert testimony, relied heavily on the NTP review and found that “fluoridation posed an unreasonable risk to human health, particularly to the developing brain”.

Browne pointed out that the 2014 Chief Science Advisor’s report that Varuhas was citing, was now “ancient history”. He said so much has happened in the past 11 years that the 2014 review was now irrelevant. And apart from that it had contained a huge “clanger” where it had incorrectly stated a review of IQ studies showed a loss of less than 1 IQ point, when that loss was actually less than 1 standard deviation i.e. 7 IQ points.

Varuhas also claimed that researchers finding evidence of harm were “mining” two cohorts of data until they came up with the result they wanted. Browne took umbrage to this and pointed out that Varuhas’s and Town’s usage of the word “mining” was actually a perjorative.

The Judge commented that no one could suggest that anyone in the Ministry of Health could be acting in a way that would be intentionally misleading. Browne replied that it was common for authorities to get things wrong citing asbestos, lead in paint and petrol, thalidomide and frontal lobotomies, and that he was not implying that the Ministry of Health officials were acting in anyway dishonestly but that defending a long held practice was a natural instinct and that, as he had said at the beginning of the hearing, was a result of institutional inertia. It is concerning that the Judge had no apparent issue with the MoH making the same claim about two of the most respected scientists in the world.

The judge reserved her decision but said she would provide it before the 28 March deadline.